6 Blackf. 163 | Ind. | 1842
This was an action of debt commenced by Farley against Webster, a constable, for the voluntary escape of one Perryman, whom Webster had arrested on a ca. sa. in favour of Farley. The declaration is in the usual form. The parties submitted an agreed ease to the Court below. The facts are substantially these, viz.: Farley had obtained a judgment against Perryman before a justice of the peace; a ji. fa. issued which was returned “ no property found; ” whereupon a ca. sa. was sued out, the style of which was “ State of Indiana, Henry county, ss.” This latter execution at the commencement of the
The Circuit Court adjudged the law to be for the plaintiff, and rendered judgment in his favour for the amount due on the execution.
The validity of the judgment is questioned on two grounds, 1, That the ca. sa., by virtue of which the defendant made the arrest, not running in the style required by the constitution,
With regard to the first point. The constitution requires the style of all process to be “ The State of Indiana.” Art. 5, sec. 11. This Court has heretofore held, that process commencing, “ The State of Indiana,” was sufficient, without repeating the name of the State in the mandatory part of it. Cooper v. Adams et al., 2 Blackf., 294. The execution before us commences “State of Indiana.” We consider this a substantial compliance with the constitution. It means precisely the same as the The State of Indiana. Besides, it is worthy of remark that every form of process, prescribed by the Legislature for justices of the peace, begins, “State of Indiana.” These forms have been long in use; to pronounce all process conformable to them void, would be attended by pernicious consequences.
The second point is equally untenable. The law subjecting real and personal estate to execution contemplates three cases, in which a debtor arrested on execution may discharge himself from custody. The first is, when he delivers to the officer making the arrest property sufficient to satisfy the writ; the second, by surrendering to the officer all his property, swearing he has no other subject to execution, and taking a further oath similar to that set out in the agreed *ease; the third instance is, when he shall swear that he has no property whatever subject to execution, and take the additional oath as in the second case. R. Stat., 1838, p. 282.
We do not think, the debtor, Ferryman, brought himself within-any of these provisions. The two first evidently contemplate the actual delivery of property to the officer; and the last, that the debtor shall make oath he has none subject to execution. Perryman did not deliver property to the constable , he delivered only a schedule; and he, did not swear that he was destitute of property. We are aware that this construction of the statute will exclude-from its benefits an arrested
There is another feature presented by the agreed case, which renders it very doubtful whether' the defendant’s justification is made out, even admitting Perryman had entitled himself to a discharge from custody. It is the duty of the magistrate, before ydiom'the debtor makes his oath, to reduce it to writing, cause the debtor to sign it, and hand it over to the officer, who is required to make it a part of his return, and append it to the writ. R. Stat., 1838, p. 282. This was not done in the present case. The oath which the constable did return was only a part of that taken by the debtor; and it does not appear to have been appended to the writ.
Per Curiam.—The judgment is affirmed, with onecer cent. damages and costs.
Imprisonment for debt is now abolished in this State, except in cases of fraud, &c. Stat., 1842, p. 68.